Defining “Probable Cause” in Tow Hearings

Tow Hearings and Probable Cause.

There are four issues that can be decided at a Tow Hearing.  See Tex. Occ. Code § 2308.458(c) (Lexis 2014).  However, the most common issue adjudicated at a Tow Hearing is whether or not probable cause existed for the removal and placement of the vehicle under Tex. Occ. Code § 2308.458(c)(1).  In a Tow Hearing with probable cause at issue, the applicant bears the burden of proof to show that no probable cause existed for the removal and placement of the vehicle.  Id. at § 2308.458(b-1)(1).  Unfortunately, while the Texas Towing and Booting Act gave us the idea of “probable cause,” it failed to define that term.

No Statutory Definition of Probable Cause.

While the issue of probable cause is central to nearly every Tow Hearing, the Texas Towing and Booting Act fails to define what circumstances establish probable cause.  It is not included in the definitions section of the statute and it is not elsewhere defined.  The absence of this definition combined with the scant amount of case law on the subject has left the issue quite up in the air in many hearings.  Without a statutory or common law definition, many Tow Hearing applicants and tow companies are left simply arguing the basic facts surrounding the tow in a courtroom. This results in a situation where a coin toss is just as likely to determine the winner as a good argument.

Case Law on Probable Cause.

At least one appellate court has addressed the issue of what constitutes probable cause in a memorandum opinion.  In the case of Fidelis v. Smith, Badaiki Fidelis’s car was removed by Overhaulin’ Tow Company.  Fidelis argued in several points that that probable cause did not exist for the removal and placement of his vehicle because the parking facility where his car was parked lacked signage complying wiht Subchapter G of the Texas Towing and Booting Act. See Generally, Fidelis v. Smith, 2009 Tex. App. LEXIS 7815 (Tex. App.-Houston 14th Dist. Sep. 29, 2009).  

Fidelis provides insight into what an appellate court would consider to be the definition of “probable cause.” The appellate court responded to Fidelis’s argument of no probable cause by reviewing the record to see whether signs that complied with Subchapter G of the Texas Towing and Booting Act were present on the parking facility.  In doing so, this appellate court established the rule that if signs prohibiting unauthorized vehicles on the parking facility are not in compliance with Subchapter G of the Texas Towing and Booting Act, there can be no probable cause for the removal of the vehicle.

Streamlining Tow Hearings in Light of Fidelis.

Tow Hearings do not need to be long, drawn out affairs. As the most common issue is whether or not probable cause existed for the removal of a vehicle, determining whether the signs prohibiting unauthorized vehicles complied with Subchapter G of the Texas Towing and Booting Act should be the primary focus of the hearing.

Many times, justice courts find themselves conducting Tow Hearings for several hours. This is an unnecessary drain on judicial resources for several reasons.  First, the issues to be decided in a Tow Hearing are few.  Second, the scope of examination can be both developed and limited by the judge to only those issues relevant to the Tow Hearing.  Third, there is no need to discuss other violations of the Texas Towing and Booting Act as those issues are more appropriate for a civil lawsuit and not a Tow Hearing. Thanks to the appellate court’s guidance on what probable cause is, justice courts can simply analyze signage and call it a day in most cases.

Another benefit of following appellate guidance in a Tow Hearing is that it reduces the likelihood of appeal to county and appellate courts.  By tracking the appellate court’s guidance on determining probable cause, justice courts can make decisions that a county or appellate court would  follow.  Thus, even at a de novo trial in county court, the result would be the same as that in justice court. Absent a vexatious litigant, there would be no reason whatsoever to appeal a properly decided case from justice court. This, again, reduces the drain on judicial resources by getting the result right the first time.


Tow Hearings should be neither complicated nor lengthy affairs.  The issues to be adjudicated are spelled out in the statute.  Even the question of what constitutes probable cause for removal of a vehicle has now been clarified.  The points to be argued are clear and the parties to the hearing now know what they need to prove in order to prevail.

Ryan (that's me) also has a life outside of the law. I love spending time with my beautiful wife and my dog in the Heights, live music, and long walks on the beach.